Harry Evans 'Constitutionalism, Bicameralism, and the Control of Power'

Papers on Parliament No. 50
March 2010

Bicameralism is only a subset of the constitutional principle of division of power. According to that principle unlimited power vested in an individual or group will be abused; it will be used to retain power, to reward supporters and punish opponents and to divert public purposes to private ends. So power must be limited. The only satisfactory method of limitation is to divide power between different bodies with some sort of veto over each other’s actions. Only respect for another power can restrain power. To make the system last, the division is made between institutions, not people.

The thesis that power corrupts its possessor may be as good a ‘law’ as any that we have in political science … .

Whether exercised by a monarch or by a small group, persons who regard themselves as especially wise and virtuous are probably the worst custodians of power.

Historical experience, however, is not an unrelieved record of failure to deal with the problem of power. A number of societies have succeeded in constructing political systems in which the power of the state is constrained. The key to their success lies in recognising the fact that power can only be controlled by power. This proposition leads directly to the theory of constitutional design founded upon the principle most commonly known as ‘checks and balances’.[1]

Inherent in this view is that it is a delusion to seek good government by ensuring the choice of wise rulers; no-one is fit to be trusted with undivided power. As was famously said, systems of government should be designed for people, not angels.[2]

Also inherent in this principle is that democracy, the popular election of the rulers, is a useful safeguard, as distinct from a supposed mechanism for giving effect to the will (which will?) of the people. As a safeguard it is not sufficient. Electors will vote for tyrants who give them prosperity, peace and/or glory, or the illusion thereof. Democratic electorates are also careless of corruption and malfeasance in government unless and until it begins to affect their personal circumstances.[3] They expect the political class to solve such problems, but the political class cannot do so without the appropriate institutions to enable remedies to be implemented.

So the possessors of power must be forced to take note of others also with power, working through institutions with some measure of independence. Bicameralism is only one way of establishing a division of power. Another is the entrenchment of an independent judicial power exercised by appointed judges with tenure, a system unquestioned except recently by American right-wing fundamentalists, and in itself basically undemocratic. Another is federalism, the division of power between levels of government, which, as economic fundamentalists occasionally point out, is likely to be “inefficient” in superficial ways. Safeguards often are.

No safeguard is infallible. The division of power can be defeated simply by the capture of supposedly independent institutions by a person or the same group of persons bent on some common purpose. It matters little whether such a group aims at ‘schemes of usurpation or perfidy’[4] or Great and Necessary Reforms; abuse as defined will be the result.

In devising institutions for the division of power, the hope is that the personnel in an institution (whether elected office-holders or wretched parliamentary clerks) will develop a loyalty to the institution and its purposes and therefore support its role. It is hoped that the rights of the place will become the interests of the person.[5] This hope may also be defeated.

Australia

Australia may be regarded as one of those fortunate societies which has managed to deal with the problem of power by constructing a political system in which the power of the state is constrained by power controlling power. The Australian Constitution has many of those safeguards which arise from that construction:

a practically irremovable constitutional monarch, operating through a prestigious representative

federalism: an entrenched division of power between the centre and the provinces

the cabinet system, which ensures collective decision-making by a politically responsible group rather than one person

responsible government, whereby the holders of the executive power can be removed at any time when the legislature loses confidence in them

an independent judiciary with a powerful constitutional court at its head.

In practice, this structure of safeguards has been seriously degraded:

the real head of state (as the monarchists insist on designating the Governor-General) is hired and fired by the prime minister, who has also largely taken over the celebratory/social role of the office[6]

the central government can interfere with any of the responsibilities of the states, and does[7]

the cabinet is largely a formal registering body for the decisions of the prime minister and his inner circle;[8] this seems to be accepted as normal by all concerned

government is not responsible, or even accountable, to parliament; government controls parliament (or at least lower houses) through a built-in, iron-clad, rusted-on party majority[9]

the judiciary is appointed by the executive alone, and if power is held long enough can be stacked with ideological sympathisers.[10]

The case for bicameralism in Australia now is not the old case of one house checking another; it is not even the case of adding another division of power. It is the case of providing something, anything, which will limit the power of the state now held at best by a small group of persons, leading ministers, and often in practice by one person, the prime minister.

It is possible to make out a defence of the current system and a case for an upper house along the following lines. In order to retain power, the government, or usually the prime minister, has to keep their supporters on side. (So does even the most absolute monarch; there are always courtiers and barons to be consulted and placated.) An upper house increases the number of supporters who have to be kept on side, and may magnify the significance of any dissenters. Thereby government is more accountable. This is a feeble argument for such an historically significant institution. It is not sufficient to justify the expense of an upper house. Such a chamber must exercise a publicly-visible and substantial check on the power of government to justify its existence.

Australia might also be called a fortunate society regardless of the state of its governance (at least until recently: rising real estate values, low interest rates, etc, etc). So who cares that the carefully planned scheme of the ancient founders has been frustrated? Australia is well supplied, however, with abuses of power as defined; legislation has been devoted to retaining power, to rewarding supporters and punishing opponents, and public resources have been diverted. Examples will here be carefully selected and delicately described to avoid giving offence. Readers may recall their own selection.

Political and other safeguards

Bicameralism is a political safeguard; it operates by political processes through the political or elected branches of government. Other safeguards may be constitutionally entrenched or established by statute.

Constitutional safeguards are valuable, particularly if they are difficult to change, as in Australia. It is only necessary to think about what sort of system of government Australia would now have if the Constitution could have been changed by a parliamentary majority, as in some countries, rather than by referendum. Of course governments would have rearranged the system to suit themselves, and remove checks on their power. But, as has been noted, systems of government can be changed without formal changes to the constitution; written constitutions can be undermined.

Secondary or statutory safeguards are also valuable. Australia has quite a number of them, in which great trust is reposed: auditors-general, administrative appeals tribunals, ombudsmen, freedom of information statutes. All of these kinds of safeguards, however, are at the mercy of governments in control of the legislature and the treasury. They can be dismantled at any time. To choose an example which may now not give so much offence, we may remember the legislation by the Kennett government to disband the Victorian Audit Office.

Governments with parliamentary majorities have the electoral law, in particular, at their mercy. The temptation to rearrange it to perpetuate themselves is hard to resist.

Also, all non-political safeguards depend ultimately on the political processes for their establishment, maintenance and defence. Attempts to dismantle them are likely to be successful in the absence of political noise and obstruction generated in the political class. That noise and obstruction needs independent political institutions to be effective. Therefore the political safeguards, such as bicameralism, are the primary safeguards. This is a variation on the theme that power can only be controlled by power.

Conditions for bicameralism

As noted, safeguards can be defeated. Bicameralism, and other divisions of power, can be defeated by the capture of the institutions by the same person or group. Therefore, bicameralism has to be designed, as well as can be, to keep the parliamentary institutions in different hands.

In Australia that means devising upper houses which are not likely to be under the control of governments, and that means keeping upper houses as much as possible away from government party majorities. As recently as the 1980s it was a reasonable proposition that a government party majority did not necessarily mean government control. The Fraser government, with a party majority from 1976 to 1981, did not control the Senate; at various times there were up to twelve government senators ready to vote against the government, particularly on issues of accountability. Party discipline, or the compulsory loyalty of government backbenchers to their government, has greatly increased since then. “Crossing the floor” is now such a serious step that governments are mostly able to forget the possibility.

This means that in practice election by proportional representation is the only likely means of establishing an upper house with the means to exercise a division of power. If any other construction of the institution is feasible, news of it would be welcome.

The establishment of such an upper house in a jurisdiction which does not have one, or the reform of an ineffective one, may be regarded as a “big ask”, as the jargon has it. Governments which effectively control the rest of the system are not very enthusiastic about limiting their own power, particularly when in practice this involves handing power to their rivals and opponents. Such an occurrence, however, is not entirely impossible, as witness the decision of the Victorian government in 2003, effective in 2006, to implement proportional representation in the Victorian Legislative Council.

Discussion of bicameralism in Australia arouses the morbid dread, genuine or feigned, of a repetition of the events of 1975, of an upper house forcing a government to an early election. The remedy is readily available: a fixed term parliament, whereby the lower house can be dissolved early only if it is unable or unwilling to support a government. A bill for such a change to the Commonwealth Constitution was passed by the Senate in 1982, with some Coalition senators voting against their government to pass it. By removing the power of a prime minister or premier to call elections for political convenience, the fixed term is a useful reform in itself (which is why it was dropped by the incoming government in 1983).

On the subject of reform, the governance of Australia could be greatly improved by reform, not of the primary institutions, but of the political parties, to make them more internally democratic and less able to enforce total conformity on their members.

Its value

The value of an upper house not under government control is essentially that it establishes something of a legislature which may be capable of doing what legislatures were once supposed to do. Premier Bjelke-Petersen famously had difficulty in articulating the principle of separation of powers. He could be forgiven because separation of the legislative and executive powers has virtually been lost in Australia, apart from those upper houses. The executive government legislates through its ever-compliant lower house majority. Normally no rejection or amendment, and sometimes even no debate, is allowed on proposed laws as they emerge from the secret councils of the executive. The public largely think that this situation is normal; parliaments are seen as merely low-quality debating panels controlled by governments, which is what lower houses are. Only upper houses violate this system of “democracy”. And, apart from those upper houses, parliaments are not allowed to discover information which government is not willing to disclose.

In the old textbooks, legislatures were supposed primarily to legislate and to inquire. Legislating meant making the laws, even if only adjusting the proposals of the executive. Conducting inquiries was seen as feedback into legislating, but more importantly could be seen as disclosing information necessary to ensure capable and honest government. Sunlight, it was said, is the best disinfectant, and the legislature was supposed to let the sunlight in.

So far as legislating goes, rejecting or amending the proposals of the “democratically elected” government is now characterised as obstruction. Whether obstruction is a bad thing obviously depends on what is being obstructed. The great fallacy that obstruction is always undemocratic because the electors have approved everything that the executive government wants to do has been too much debunked to require any further refutation.[11] The “obstruction” of legislation by upper houses of the kind envisaged is likely to indicate that what is proposed lacks broader popular support than the forty-odd percent of votes sufficient for governments to win office. Also, such obstruction may be in the best interests of governments by relieving them of the obligation to attempt to implement the more extreme measures of their ideological supporters.[12]

In relation to inquiries, throwing the sunlight is more important than making better laws. If abuse of power is the evil to be avoided, the ability of an independent legislature to expose abuse is highly significant.

The point is that governments use their parliamentary majorities to suppress both activities. Legislation notoriously is ‘rubber-stamped’, with no dissent by government backbenchers, much less contribution by members of other parties, permitted. Inquiries are not permitted if they might cause embarrassment to government. It is those inquiries that are the most needed, if abuses are to be avoided. Only upper houses not under government control actually perform legislative functions by exercising to a certain extent the legislative power and the inquiry power.

Actual performance

This may be demonstrated by an examination of the activities of two such upper houses, the Senate, before and after the Howard government gained a majority in that chamber, and the New South Wales Legislative Council.

The Senate: legislation

In relation to legislation, the Senate’s record of obstruction is exceedingly thin. Those who think that governments with a monopoly of power deserve greater obstruction would not be impressed by the performance.

In the first ten years of the Howard government, during which it lacked a majority in the Senate, an average of 154 bills were passed each year.[13] There were only 17 deadlocked bills, that is, bills that could have developed into ‘triggers’, or actually became ‘triggers’, under section 57 of the Constitution, in the parliamentary term of 2001–04, including those reintroduced from previous terms. Only seven pieces of legislation remained as ‘triggers’ at the end of that term. It may be argued that they were important bills. The contrary consideration is that, lacking broader support, they did not deserve to pass. Many more that passed were also important. In the government’s previous terms only five bills qualified as ‘triggers’. Thus there was little obstruction.

Many bills were passed because the government compromised with other parties and accepted amendments. This can hardly be called obstruction; it is what legislatures are meant to do, according to the textbooks.

An average of 860 amendments were made by the Senate to government bills in each year over that period. Amendments moved by non-government parties are not distinguished from government amendments, because government amendments were frequently offered in an attempt to overcome perceived difficulties with legislation and to gain support in the Senate. This represents a modestly significant contribution to law-making. In order to assess whether the contribution was valuable, a judgment would have to be made about each piece of legislation and each amendment. Unless it is thought that legislation is perfect as promulgated by government, it would have to be conceded at least that some useful contribution may have been made.

In the first two years after the Howard government gained its majority in the Senate on 1 July 2005, only 20 non-government amendments, out of 1650 moved, were accepted. Even amendments supported by government senators in committees were rejected in some cases, with those senators voting for the rejection. The most notable instance of this was the Telecommunications Interception Bill 2006, passed in March 2006. Unless it is thought that government legislation has suddenly attained perfection, it would have to be conceded that at least some valuable contribution may have been lost.

The treatment of the Howard government’s first round of anti-terrorism legislation was particularly instructive. The intensive scrutiny and extensive amendment of that legislation by the Senate was widely welcomed; it could hardly have been called obstruction. It also provided a specimen of bicameral legislative negotiation and compromise. Subsequent instalments of anti-terrorist legislation, after the government gained its majority, were passed as the government required.

The Senate: inquiries

It has been suggested that the inquiry function is more important than the legislating function.

Over its entire history the Senate has taken measures which had the effect of compelling governments to provide information and to explain themselves in ways that would otherwise not be required. These measures ranged from insisting in 1901 on details of proposed expenditure in appropriation bills, to requiring in 2001 the publication on the Internet of details of government contacts. All of these measures depended, directly or indirectly, on governments not having control of the Senate; none would have been taken if governments had had the level of control the Howard government had between 1 July 2005 and 24 November 2007. Of particular significance was the establishment in 1981 of the Scrutiny of Bills Committee, to scrutinise all legislation to detect any violations of civil rights or of legislative propriety. That measure was taken, in a period when the government had a majority in the Senate, only because several government senators promoted it and then voted against the government on the issue. Unless it is thought that all of those measures were totally useless or deleterious in effect, it would have to be conceded that at least some contribution was made to better government.

Another method whereby the Senate conducts inquiries is to direct its standing committees to hear evidence and report on matters of public interest. In the time of the Howard government’s minority in the Senate, about 180 such inquiries were conducted. The subjects ranged from property management in the public service to the treatment of children in institutional care. It would be difficult to maintain that any of those inquiries told the public nothing that was not already known, or that the public had no right to know about the additional information produced.

After 1 July 2005 the Howard government, through its majority in the chamber, controlled all references to committees. With only two or three exceptions, all inquiries were government-friendly; none likely to lead to embarrassment or political difficulty for the government were approved. Non-government initiatives to refer matters to committees were overwhelmingly rejected. In many instances inquiries were designed to disconcert state Labor governments, or to promote the government’s agendas. In 2006 the government gave itself the majority and the chairs of all of the standing inquiry committees, thereby adding another level of control. The procedures for sending bills to committees for public input, established by the Senate in 1988, were retained, but only referrals approved by the government were allowed. Committees were placed under unreasonable deadlines for inquiries into bills; the average time for such inquiries declined from 40 to 30 days.

Another way in which the Senate has conducted inquiries in the past is by means of orders for the production of documents, usually requiring ministers to disclose information about matters of public concern. The Howard government, before gaining its majority, was building up a record of refusals to comply with orders for documents. There was also an increasing tendency simply to refuse rather than to make out some argument for non-disclosure on public interest grounds. In the Parliament of 1993-96, 53 such orders were made, all but 4 being complied with. In the Parliament of 1996-98, 48 orders were made and 5 were not complied with. In the Parliament of 1998-2001, there were 56 orders, and 15 not complied with, in that of 2002-04, 89 orders and 46 not complied with. During the Howard government’s majority only one motion for production of documents was agreed to. All other motions for documents were rejected, usually with no reasons given, regardless of the nature of the documents concerned.

The refusal of the Howard government during its majority to allow any inquiries into politically difficult matters left the Senate estimates hearings as the last forum for asking questions about such matters, and they were under sufferance. This is shown by the instruction in 2006 to officers not to answer any questions about the AWB Iraq wheat bribery affair. It was explicitly stated that this was not a claim of public interest immunity, simply a flat refusal.[14] The only reason given was that the Cole commission of inquiry was looking into the matter. It was not claimed, and could not be claimed, that there was any parliamentary/procedural or legal reason for not answering questions in the hearings. It was simply asserted that having two inquiries would be undesirable. The only disadvantage of different inquiries is the danger of contradictory answers. The refusal to answer some questions was repeated after the Cole commission reported.

The AWB affair is also instructive because the commission of inquiry came about only because of pressure from overseas, ironically starting with pressure from members of a legislature which is freer than ours, the US Congress. Without the element of overseas pressure, and without a free-range Senate, we would probably have remained in the dark. It is the AWB-type affairs we do not know about which are cause for worry.

In other committee hearings, it became common for ministers and officers to refuse to answer questions, often without giving any reasons. They did so secure in the knowledge that the government-controlled Senate would not take the kind of remedial action taken in the past, such as declining to pass legislation until relevant information is supplied.

It is unrealistic to expect an investigative media to perform the role of a hobbled Senate. Many people, especially public office-holders, will not talk except in a protected forum. Only the parliamentary forum can offer the protection of parliamentary privilege, if, of course, it is allowed by government to have something to protect.

Apart from the desirability of informing the public, it is in government’s long-term interest not to conceal wrongs in the body politic. Governments never seem to learn this. It may be, as government senators asserted, that there were no systemic problems in the Regional Partnerships and Sustainable Regions Programs, under which large sums of public money were handed out to private bodies and persons for various “development” projects. But surely it was useful to have a Senate committee looking closely at instances where expenditure at least appeared dubious, to help ensure that things remained on track before a spectacular wreck occurred.[15] Suppressing the legislative inquiry function only allows evils to multiply, and lengthens the time it takes for them to burst forth. The dominant ministerial principle of keeping the lid on things is not good government.

It is often said dismissively that Senate inquiries are based on party politics. Indeed they are. Free states work through party politics. Subjecting the rulers to the scrutiny of their rivals and opponents is what the safeguard is all about.

The record shows what would have been lost without the Senate, or with the Senate perpetually under government control. There would have been less information available to the public, and governments would have been freer to practise malfeasance and concealment. Perhaps the economy would have been in better shape without all that legislative interference, but abuse of power unchecked can ultimately defeat even the policies approved by economists. It is also apparent what was lost very soon after the government gained its majority.

The experience of the Howard government majority in the Senate may have reinforced in the minds of the electors the impression that a government Senate majority is not healthy and should be avoided, and may have reinforced the tendency of some electors to split their votes in Senate and House of Representatives elections. It is not unrealistic to suggest that the Howard government’s Senate majority was a significant factor contributing to its defeat in the 2007 general election. One former minister in that government thought so.[16]

New South Wales Legislative Council

In relation to this house, a single but telling example is offered: its ability to compel governments to disclose information they otherwise wish to keep secret for their own protection.

Like the Senate, the Council has used orders for production of documents to gain access to information held by government about matters of public concern. When met with refusals, however, the Council was bolder and more determined than the Senate. In 1996, when the Treasurer refused to disclose documents in response to an order, the Council ejected him from the chamber and from the building. He was sufficiently ill-advised to take the Council to court, and comprehensively lost the case. The Supreme Court upheld the power of the Council to impose a penalty for refusal of an order for documents. After a few more contests, the Council established a situation whereby it is able to obtain any government documents it requires, subject only to independent arbitration of any government claim that it would not be in the public interest to disclose particular information.[17] Council orders for documents have now become so unremarkable that they go unreported, and the public is unaware that particular disclosures have been brought about by the Council. For example, the first disclosures of disturbing information about the financial entanglements of the cross-city tunnel was the result of a Council order.

A great volume of information that would otherwise have been concealed from the public has been disclosed through this legislative action. Government has been more accountable and less able to conceal any misdeeds as a result.

What do we want?

However cogent the argument, there will remain a hard core of the hard-nosed who only want governments to get on and govern, and who require only the ability at regular intervals to remove them if they do not. Such people will continue to scorn all safeguards as wasteful and inefficient, a drag on the market.

The real realists, however, are those who know that their pockets will not remain unpicked and their rights untrampled if their chosen representatives are given a free rein between elections indefinitely. Such people are properly sceptical of the claim that ‘strong government’ equals economic growth.[18] They will appreciate the difficulty of judging a government if it controls the information they receive. They will therefore welcome the timely installation of safeguards to curb malfeasance at an early stage. Australia is now undersupplied with safeguards, and oversupplied with public scandals, not counting the misdeeds we do not get to hear about. We should preserve the safeguards that exist and think very carefully about new ones.

[6] The ‘disappearing’ or ‘invisible’ Governor-General has become something of a theme of political commentary: K. Walsh, ‘Lost: one G-G, rarely driven’, Sun-Herald, 23 November 2003, p. 31; A. Henry, ‘The disappearing Governor-General’, Perspective, Radio National, 27 February 2004; D. Marr, ‘And to crown it all’, Sydney Morning Herald, 5 November 2005, p. 29; I. McPhedran and L. Dowidat, ‘G-G fades from sight’, Courier Mail, 24 August 2006, p. 32. According to the last report, the prime minister’s press secretary told the Governor-General’s staff to ‘keep the viceroy off TV’.

[7] This was the situation well before Prime Minister Howard began his 2007 pre-election drive to take over numerous state functions. G. Craven, ‘The new centralism and the collapse of the conservative constitution’, Papers on Parliament no. 44, 2006, pp. 133–45. A. Twomey and G. Withers, Federalist Paper 1, Australia’s Federal Future, A report for the Council of the Australian Federation, April 2007. P. Pendal, ‘Beware Howard’s lust for power’, West Australian, 3 August 2007, p. 18; M. Fraser, ‘We must stop this erosion of Australian democracy’, The Age, 3 August 2007, p. 13.

[8] Most government decisions are now described as personal decisions of the prime minister. The decision to participate in the Iraq war led to renewed calls for the war-making power to be subject to parliamentary approval, but the Prime Minister has repeatedly described the decision as his personally, eg: ‘I am prepared to defend what I did … ’ ABC Radio News, 7.45 am, 21 March 2006. His ten billion dollar National Water Plan was not even endorsed by cabinet: Senate Finance and Public Administration Committee, transcript of estimates hearings, 12 February 2007, p. 162.

[9] A selection of less temperate descriptions by eminent authors of government control of the House of Representatives is in S. Bach, Platypus and Parliament: the Australian Senate in Theory and Practice .Canberra, Department of the Senate, 2003, pp. 240–2; M. Price, ‘Joyce [Senator Barnaby Joyce] blasts cowards wrecking democracy’, The Australian, 26 July 2006, p. 7.

[15] Senate Finance and Public Administration References Committee, Report on Regional Partnerships and Sustainable Regions Programs, October 2005, Parliamentary Paper 226/2005. This program was subsequently the subject of a devastatingly critical report by the Australian National Audit Office, released just before the 2007 election (Report No. 14, 2007–08). Delaying exposure of the problem only increased the political damage.

[16] Mr Andrew Robb, who stated that control of the Senate was a ‘poison chalice’ for the government and lack of check and balance contributed to its defeat in 2007 (ABC Radio National, 13 December 2007).

[17]Egan v Willis and Cahill [1996] 40 NSWLR 650; [1988] 158 ALR 527; Egan v Chadwick and others [1999] 46 NSWLR 563. Unfortunately, the Supreme Court held that documents revealing cabinet deliberations could not be compelled by the Council. This limitation would not apply to the federal Houses.